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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
R.A.M. OF SOUTH FLORIDA, INC.,
and GEORGE MIQUEL,
Case No. 2D03-284
WCI COMMUNITIES, INC.,
Opinion filed March 26, 2004.
Appeal from the Circuit Court
for Lee County;
J. Frank Porter, Acting Circuit Judge.
Sharon Kung and David J. Valdini of
Valdini & Palmer, P.A.,
Fort Lauderdale, for Appellants.
Kelley Geraghty Price of Cummings &
Lockwood, LLC, Naples, for Appellee.
R.A.M. of South Florida, Inc., a subcontractor, appeals the trial court's
ruling that its contract action and lien claim against the appellee, WCI Communities,
Inc., are based on an unenforceable contract. Because we conclude that R.A.M.'s
claims were properly barred by a statutory provision prohibiting the enforcement of
illegal construction contracts, we affirm the decision of the trial court.
At the outset, we note that the illegality and unenforceability of the
construction contractwhich contained an arbitration provisionwas an issue to be
decided by the trial court rather than by the arbitrator. See § 682.03(1), Fla. Stat.
(2000); Riverwalk Apts., L.P. v. RTM Gen. Contractors, Inc., 779 So. 2d 537, 538 (Fla.
2d DCA 2000) ("A party who alleges and offers colorable evidence that a contract
containing an arbitration clause is illegal cannot be compelled to arbitrate the threshold
issue of the existence of the agreement to arbitrate; only a court can make that
determination."); see also Island House Developers, Inc. v. Amac Constr., Inc., 686 So.
2d 1377 (Fla. 1st DCA 1997).1
A. Facts of the Case
On May 10, 2000, WCI and R.A.M. executed a standard form contract for
construction work in which R.A.M. agreed to perform concrete and masonry work for
WCI's "Bay Club at the Colony" project, a club facility located in the Pelican Landing
subdivision in Fort Myers. George Miquel, R.A.M.'s president, signed the contract on
1 We recognize that the Eleventh Circuit has concluded that both the Federal
Arbitration Act and the Florida Arbitration Code allow an arbitrator, rather than a court,
to decide whether a contract is unenforceable under section 489.128 once a
determination has been made by a court that the dispute falls within the scope of a valid
agreement to arbitrate. See John B. Goodman L.P. v. THF Constr., Inc., 321 F.3d 1094
(11th Cir. 2003); see also Rewards Hotel Mgmt. Co. v. Elite Gen. Contractors, Inc., 860
So. 2d 1011 (Fla. 3d DCA 2003) (holding that the Federal Arbitration Act permits an
arbitrator to decide whether a contract is unenforceable under section 489.128 and
suggesting in dicta agreement with Goodman that applying the Florida Arbitration Code
would have the same result).
behalf of R.A.M. At the time the contract was signed, neither R.A.M. nor Miquel were
licensed to perform the construction work required under the contract.
R.A.M. began its work in late May of 2000. During the course of
construction, a dispute arose between R.A.M. and WCI regarding the quality and
timeliness of the work being performed by R.A.M. As a result of this dispute, WCI
refused to pay certain sums due under the contract. In response to WCI's nonpayment,
on January 28, 2001, R.A.M. recorded a claim of lien against the real property on which
the work was done. In January of 2001, R.A.M. ceased all work on the project.
Subsequently, R.A.M. filed a cross-claim against WCI in litigation which
had been initiated by a third party against both R.A.M. and WCI. This cross-claim
sought to enforce the claim of lien and also sought damages for breach of contract and
unjust enrichment. WCI responded to the cross-claim by invoking a clause in the
contract between R.A.M. and WCI that required binding arbitration of disputes arising
out of the contract.
During arbitration, WCI became aware that R.A.M. and Miquel were not
licensed contractors. Following this discovery, WCI filed an action seeking a
declaratory judgment that the contract between WCI and R.A.M. was illegal and
unenforceable and a judgment discharging R.A.M.'s lien. WCI also filed a motion to
stay the arbitration pending a judicial determination of the enforceability of the contract.
The trial court held a hearing on the motion to stay the arbitration. At the
hearing, the parties agreed that the material facts relating to the enforceability of the
contract were undisputed. Specifically, the parties agreed that R.A.M. and Miquel were
not licensed to perform the construction when the work was performed. However, both
parties also agreed that R.A.M. and Miquel did become licensed on October 25, 2002,
more than two years after the construction work began and more than a year and a half
after it was terminated. It was also agreed that the legal issue of the enforceability of
the contract was ripe to be decided.
The trial court granted WCI's motion to stay the arbitration, ruled that the
contract between R.A.M. and WCI was illegal and unenforceable pursuant to section
489.128, Florida Statutes (2000), and discharged R.A.M.'s lien on WCI's property.
R.A.M. now appeals those rulings.
B. The Statutory Framework
This case turns on whether R.A.M.'s claims were properly barred by the
provisions of section 489.128:
As a matter of public policy, contracts entered into on or after
October 1, 1990, and performed in full or in part by any
contractor who fails to obtain or maintain a license in
accordance with this part [i.e., part I, chapter 489] shall be
unenforceable in law or in equity.
An earlier version of this statute, which was in force in May of 2000 when the contract
between R.A.M. and WCI was executed and work on the construction project began,
contained an additional provision allowing a contractor to cure the contractor's
unlicensed status. Under this earlier version of the statute, when such a cure was
effected by a contractor the otherwise unenforceable contract would become
enforceable. This earlier version of the statutecodified in the 1999 Florida
Statuteswas identical to the version in the 2000 Florida Statutes, except that it
contained an additional sentence at the end of the section: "However, in the event the
contractor obtains or reinstates his or her license, the provisions of this section shall no
longer apply." § 489.128, Fla. Stat. (1999). This cure provision present in the 1999
statute was repealed by the legislature effective July 1, 2000. See ch. 00-372, § 35, at
4338 (repealing cure provision), § 48, at 4344 (providing effective date of July 1, 2000),
Laws of Fla.2
The provisions of section 489.128 concerning the enforcement of
contractual rights under construction contracts performed or entered into by unlicensed
contractors should be viewed in the context of section 489.127(1)(f), Florida Statutes
(1999), which makes it a crime for any person to "[e]ngage in the business or act in the
capacity of a contractor . . . without being duly registered or certified as having a
certificate of authority."
II. ISSUE ON APPEAL
The dispositive issue on appeal is whether R.A.M. was entitled to cure its
unlicensed status pursuant to section 489.128, Florida Statutes (1999), when the cure
provision of the statute was no longer in force. R.A.M. contends it was entitled to obtain
the benefit of the provisions of the statute in force when it entered the construction
2 The 2000 version of section 489.128 was in force from July 1, 2000, through
June 25, 2003. In response to questions concerning the interpretation of the various
versions of section 489.128 and related statutory provisions, the legislature in
2003while this appeal was pendingadopted legislation with certain provisions
intended to "clarify existing law." Ch. 03-257, § 8, at 1294, Laws of Fla. The 2003
version of section 489.128 provides, in pertinent part: "(1) As a matter of public policy,
contracts entered into on or after October 1, 1990[,] by an unlicensed contractor shall be
unenforceable in law or in equity by the unlicensed contractor." Id. § 1, at 1290. The
2003 version of the law contains no cure provision like the cure provision in the 1999
version of the statute. The 2003 legislationwhich became effective on June 25,
2003explicitly provides that its provisions affecting section 489.128 "are intended to be
remedial in nature and to clarify existing law," and that those provisions "shall apply
retroactively to all actions . . . initiated on or after, or pending as of, the effective date of
this act." Id. § 8, at 1294. The changes made by the 2003 statute are not pertinent to
the questions at issue in this appeal.
contract with WCI. R.A.M. argues that the 2000 version of the statute cannot be applied
to remove R.A.M.'s vested right granted by the 1999 version of the statute to cure its
unlicensed status. In support of its position, R.A.M. relies on Palms v. Magil
Construction, Inc., 785 So. 2d 597, 598 (Fla. 3d DCA), review denied, 805 So. 2d 811
(Fla. 2001), which held that "the 2000 amendment" to section 489.128 "does not
operate retroactively," and thus would not be applied to a suit that was pending when
the 2000 version of the statute became effective.
WCI argues that the enforcement of the 2000 version of the statute
properly foreclosed the ability of R.A.M. to cure its unlicensed status after the effective
date of the 2000 amendment. WCI contends that the 2000 amendment to the statute is
a remedial measure and that application of that amendment does not abrogate or impair
any vested right of R.A.M.
A. Legal Principles Governing the Analysis of Retroactivity Issues
Determining proper limitations on the temporal reach of statutes is a
recurring problem in the law. The threshold question is whether the proposed
application of the statute to a particular case constitutes a retroactive application.
Where the contemplated application is judged to be retroactive, the court must
determine whether there is a sufficient basis in the relevant statute to justify the
retroactive application. If the statute is construed as being properly given retroactive
effect, it must finally be determined if such application is inconsistent with any
Deciding whether the application of a statute is retroactive involves "a
process of judgment concerning the nature and extent of the change in the law [effected
by the statute] and the degree of connection between the operation of the new rule and
a relevant past event." Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994). In
making judgments concerning retroactivity, "familiar considerations of fair notice,
reasonable reliance, and settled expectations offer sound guidance." Id. " 'A statute
does not operate "retrospectively" merely because it is applied in a case arising from
conduct antedating the statute's enactment. . . . Rather, the court must ask whether the
new [statutory] provision attaches new legal consequences to events completed before
its enactment.' " Metro. Dade County v. Chase Fed. Hous. Corp, 737 So. 2d 494, 499
(Fla. 1999) (quoting Landgraf, 511 U.S. at 269-70).
In Landgraf, 511 U.S. at 268-69, the Supreme Court noted the difficulty
that sometimes arises in determining whether a statute is retroactive, and went on to
discuss the "influential definition" of the retroactivity articulated by Justice Story 190
[D]eciding when a statute operates "retroactively" is not
always a simple or mechanical task. Sitting on Circuit,
Justice Story offered an influential definition in Society for
Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (No.
13,156) (CCNH 1814), a case construing a provision of the
New Hampshire Constitution that broadly prohibits
"retrospective" laws both criminal and civil. Justice Story first
rejected the notion that the provision bars only explicitly
retroactive legislation, i.e., "statutes . . . enacted to take
effect from a time anterior to their passage." Id., at 767.
Such a construction, he concluded, would be "utterly
subversive of all the objects" of the prohibition. Ibid.
Instead, the ban on retrospective legislation embraced "all
statutes which, though operating only from their passage,
affect vested rights and past transactions." Ibid. "Upon
principle," Justice Story elaborated,
"every statute, which takes away or impairs
vested rights acquired under existing laws,
or creates a new obligation, imposes a new
duty, or attaches a new disability, in respect
to transactions or considerations already
past, must be deemed retrospective. . . ."
Ibid. (citing Calder v. Bull, 3 Dall. 386, 1
L.Ed. 648 (1978), and Dash v. Van Kleeck,
7 Johns. *477 (N.Y. 1811)).
Though the formulas have varied, similar functional
conceptions of legislative "retroactivity" have found voice in
this Court's decisions and elsewhere.
(Footnote omitted.) As Justice Story's definition has been employed by the courts, the
concept of vested rights has played a central role in the analysis of retroactivity issues.
Where the retroactive application of a statute is at issue, the task of
interpreting the statute is guided by the rule of statutory construction which establishes
a presumption against the retroactive application of substantive lawas distinct from
procedural or remedial lawin the absence of a clear expression of legislative intent that
the statute be given retroactive effect. See Landgraf, 511 U.S. at 270, 272 ("Since the
early days of this Court, we have declined to give retroactive effect to statutes
burdening private rights unless Congress had made clear its intent. . . . Because it
accords with widely held intuitions about how statutes ordinarily operate, a presumption
against retroactivity will generally coincide with legislative and public expectations.");
Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) ("This Court
will not divine an intent that a new law be applied to disturb existing contractual rights or
duties when there is no express indication that such is the legislature's intent."); State
Farm Mut. Auto. Ins. Co. v. LaForet, 658 So. 2d 55, 61 (Fla. 1995) ("The general rule [of
statutory construction] is that a substantive statute will not operate retrospectively
absent clear legislative intent to the contrary, but that a procedural or remedial statute is
to operate retrospectively."); Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 425 (Fla. 1994)
("The presumption against retroactive application of a law that affects substantive rights,
liabilities, or duties is a well[-]established rule of statutory construction."); State ex rel.
Riverside Bank v. Green, 101 So. 2d 805, 807 (Fla. 1958) ("We have recognized the
presumption that a legislative act operates prospectively unless the intent that it operate
retrospectively is clearly expressed."). Although the presumption against retroactivity
generally does not apply to remedial legislation, "if a statute accomplishes a remedial
purpose by creating new substantive rights or imposing new legal burdens, the
presumption against retroactivity would still apply." Chase Fed. Hous. Corp., 737 So.
2d at 500 n.9.
Retroactive application of a civil statute ordinarily transgresses
constitutional limitations on legislative power "if the statute impairs vested rights, creates
new obligations, or imposes new penalties." LaForet, 658 So. 2d at 61 (holding that
statute expanding damages recoverable in statutory bad faith action against insurer
could not constitutionally be applied to causes of action accruing prior to enactment of
statute). The invalidation of retroactive civil legislation which "impairs vested rights,
creates new obligations[,] or imposes new penalties" ordinarily is based on the
conclusion that the legislation violates due process. Id.; see also Chase Fed. Hous.
Corp., 737 So. 2d at 503 ("Generally, due process considerations prevent the State
from retroactively abolishing vested rights.") (citations omitted). Where contract rights
are involved, the invalidation of the retroactive application of civil legislation may be
based on the conclusion that the legislation impairs the obligation of contract. See
Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla. 1978) (holding that obligation
of insurance contract providing for the stacking of uninsured motorist coverage was
impaired by application of statute prohibiting such stacking to contract entered before
effective date of statute); Yamaha Parts Distrib., Inc. v. Ehrman, 316 So. 2d 557 (Fla.
1975) (holding that retroactive application of statute requiring ninety days' notice for
termination of franchise agreements would unconstitutionally impair the obligation of
contract if applied to contracts entered before the effective date of statute).
B. Application of the Law to R.A.M.'s Claims
Here, R.A.M. claims that application of the 2000 version of section
489.128 impairs R.A.M.'s vested right to cure its unlicensed status. R.A.M's argument
is predicated on the assumption that the trial court retroactively applied the 2000 version
of the statute to preclude R.A.M.'s cure of its unlicensed status. We conclude that the
trial court's application of the 2000 version of section 489.128 was not a retroactive
application of law.
R.A.M. was on "fair notice" that the statutory provision for curing its
unlicensed and unlawful status was a matter of legislative grace that could be withdrawn
by subsequent legislative action. R.A.M. could have no "settled expectation" or claim of
"reasonable reliance" based on the cure provision until R.A.M. had taken the steps
necessary to be legally licensed. Landgraf, 511 U.S. at 270. Since " '[a] statute does
not operate "retrospectively" merely because it is applied in a case arising from conduct
antedating the statute's enactment,' " Chase Fed. Hous. Corp., 737 So. 2d at 499
(quoting Landgraf, 511 U.S. at 269-70), the fact that the relationshipand the
disputebetween R.A.M. and WCI arose from circumstances occurring prior to the
effective date of the 2000 statute is not sufficient to establish that the trial court's
application of the statute was retroactive. Given the nature of the unexercised right to
cure under the 1999 version of the statute, the " 'new provision' " of the 2000 statute
repealing the cure provision of the 1999 statute did not " 'attach new legal
consequences to events completed before its enactment.' " Id. R.A.M.'s failure to
exercise its right to cure under the 1999 statute means that there was no relevant
"event[ ] completed before" the effective date of the 2000 statute. Landgraf, 511 U.S. at
270. In other words, there was no "relevant past event" occurring before the effective
date of the 2000 statute that has a sufficient "degree of connection" with the "operation
of the new rule" to justify the conclusion that the application of the 2000 statute has a
retroactive effect. Id. In sum, the right R.A.M. had under the 1999 version of section
489.128 was not a vested right.
"A vested right has been defined as 'an immediate, fixed right of present
or future enjoyment' and also as 'an immediate right of present enjoyment, or a present,
fixed right of future enjoyment.' " City of Sanford v. McClelland, 163 So. 513, 514-15
(Fla. 1935) (quoting Pearsall v. Great N. Ry., 161 U.S. 646 (1896)); see also Romine v.
Fla. Birth Related Neurological Injury Comp. Ass'n, 842 So. 2d 148, 154 (Fla. 5th DCA
2003); In re Will of Martell, 457 So. 2d 1064, 1067 (Fla. 2d DCA 1984); Div. of Workers'
Comp., Bureau of Crimes Comp. v. Brevda, 420 So. 2d 887, 891 (Fla. 1st DCA 1982). "
'[T]o be vested, a right must be more than a mere expectation based on an anticipation
of the continuance of an existing law; it must have become a title, legal or equitable, to
the present or future enforcement of a demand[ ] . . . .' " Brevda, 420 So. 2d at 891
(quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex. Civ. App. 1975)).
Vested rights are distinguished not only from expectant rights but also from contingent
"[R]ights are vested, in contradistinction to being expectant
or contingent. They are vested when the right to enjoyment,
present or prospective, has become the property of some
particular person or persons, as a present interest. They are
expectant when they depend upon the continued existence
of the present condition of things until the happening of
some future event. They are contingent when they are only
to come into existence on an event or condition which may
not happen or be performed until some other event may
prevent their vesting."
Pearsall, 161 U.S. at 673 (quoting Cooley, Constitutional Law).
R.A.M.'s right to enforce the contract based on the cure of its unlicensed
status was not an "immediate, fixed right." On the contrary, it was merely an expectant
and contingent right. Until R.A.M. obtained its license, it could have no cause of action
on the contract. And it would never have a cause of action if for any reason it were
unable to be licensed. So long as R.A.M. failed to take the steps necessary to cure its
unlicensed status, its right to enforce the contract based on the cure of that unlicensed
status remained a merely expectant and contingent right. R.A.M. had nothing more
than a hope that the opportunity to cure its unlicensed status would remain availablea
" 'mere expectation based on an anticipation of the continuance of an existing law.' "
Brevda, 420 So. 2d at 891 (quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280 (Tex.
Civ. App. 1975). Some other eventnamely, the enactment of the 2000 statute
repealing the cure provisionprevented the vesting of R.A.M.'s contingent right to
enforce the contract. Once the 2000 statute became effective, the opportunity
previously afforded to R.A.M. to cure its unlicensed status was properly cut off.3
Our analysis of the vested rights issue here is parallel to the Fifth District's
analysis in Promontory Enterprises, Inc. v. Southern Engineering & Contracting, Inc., 29
Fla. L. Weekly D135, D138 (Fla. 5th DCA Jan. 2, 2004), where the court concluded that
there was no "vested right in the statutory cure provision." In reaching the conclusion
that the statutory cure provision had not created a vested right, the Promontory
Enterprises court focused on the status of the underlying agreement: "Regardless
whether a contract entered into by an unlicensed contractor is unenforceable, illegal, or
both, such a contract cannot give the contractor a vested right that may be impaired by
3 We note that when contract rights are involved a claim that a statute is
impermissibly being given retroactive effect often is based on the constitutional
prohibition on impairment of the obligation of contract. See U.S. Const. art. I, § 10; art.
I, § 10, Fla. Const. In order for this constitutional restriction to come into play, there
must be a lawful contract. "It must be made to appear that a lawful contract is in
existence which is the subject of impairment." Mahood v. Bessemer Props., Inc., 18 So.
2d 775, 779 (Fla. 1944) (rejecting contracts clause challenge to statute cutting off
certain stale claims against real property); see also Santa Rosa County v. Gulf Power
Co., 635 So. 2d 96, 102 (Fla. 1st DCA 1994) (holding that grant of franchises by
counties was "ultra vires and of no effect" and that subsequent imposition of impact fee
did not impair obligation of contract). In the instant case, it is undisputed that there was
no lawful contract. The contract was not merely unenforceable; it was also illegal. See
§ 489.12(1)(f); see also Local No. 234 of United Ass'n of Journeymen v. Henley &
Beckwith, Inc., 66 So. 2d 818, 823 (Fla. 1953) ("The cases are legion that a contract
against public policy may not be made the basis of any action either in law or equity. . . .
Agreements in violation of public policy are void because they have no legal sanction
and establish no legitimate bond between the parties."); Stewart v. Stearns & Culver
Lumber Co., 48 So. 19, 25 (Fla. 1908) ("Contracts or agreements that violate the
principles of public policy designed for the public welfare are illegal[ ] and will not in
general be enforced by the courts . . . ."). Here there was no obligation of contract to
impair. There only was the potential for transformation of the illegal and unenforceable
agreement into a lawful and enforceable obligation under the statutory provision
permitting a contractor to cure its unlicensed status. R.A.M. thus could not cross the
threshold necessary to claim that application of the 2000 version of section 489.128
worked an impairment of the obligation of contract.
retroactive application of section 489.128, Florida Statutes (2003)." Id. The court stated
that the "possibility to make the contract enforceable . . . [did] not create vested rights
because possibilities are not immediate and fixed rights of present or future enjoyment."
Id. The cure provision of the statute thus did "not create a legal or equitable title to the
present or future enforcement of a demand. . . . Once [the cure provision] was
abrogated, the possibility for cure [was] completely lost."4 Id.
R.A.M.'s claim is easily distinguishable from the types of claims that have
been held to involve vested rights. The unvested nature of R.A.M.'s right to cure stands
in contrast with the vested rights that have been protected from infringement by the
application of statutes passed subsequent to the vesting of rights. Under the case law,
once a cause of action has accrued, the right to pursue that cause of action is generally
considered a vested right. When a cause of action has accrued, a statute that becomes
effective subsequently may not be applied to eliminate or curtail the cause of action.
See Forbes Pioneer Boat Line v. Bd. of Comm'rs, 258 U.S. 338, 339 (1922) (holding
that "legislature [could not] take away from a private party a right to recover money that
is due when the [legislative] act is passed"); Rupp v. Bryant, 417 So. 2d 658, 666 (Fla.
1982) (holding that "due process considerations" precluded retroactive application of
amendments to tort immunity statute where such application would abolish vested right
to recover from persons who were not immune from liability when tort claim arose). A
fortiori, it is impermissible for a statute to be applied to prevent the enforcement of a
4 We note that the holding in Promontory Enterprises that the contract was not
unenforceable under section 489.128 turned on the retroactive application of the
particular provisions of the 2003 version of section 489.128 concerning what constituted
unlicensed status. See § 489.128(1)(b). Those provisions of the 2003 statute are not at
issue in the instant case.
judgment that was obtained before the effective date of the statute. See City of
Sanford, 163 So. 513 (holding that vested right under judgment levy could not be
abrogated by subsequently enacted statute); Dep't of Transp. v. Knowles, 402 So. 2d
1155 (Fla. 1981) (holding that statute granting state employees immunity from tort
liability for negligent acts in the course of their employment could not constitutionally be
applied to defeat judgment against employee that was obtained prior to effective date of
We do not conclude that there are no circumstances in which a vested
right could come into existence pursuant to the cure provision of the 1999 version of
section 489.128. A vested right would be created if an unlicensed contractor cured its
unlicensed status pursuant to the statutory cure provision while that provision was still in
force. The circumstances of the instant case thus are distinguishable from those cases
in which a contractor cured its unlicensed status prior to the effective date of the 2000
amendment to section 489.128. See Mivan (Fla.), Inc. v. Metric Constructors, Inc., 857
So. 2d 901 (Fla. 5th DCA 2003); Michnal v. Palm Coast Dev., Inc., 842 So. 2d 927 (Fla.
4th DCA 2003). In such cases where a contractor's unlicensed status was cured before
the effective date of the 2000 statute, the right of the contractor to enforce the contract
based on the contractor's completed action pursuant to the cure provision of the statute
5 Just as the right to enforce a judgment or to pursue an accrued cause of
action may not be cut off by subsequent legislation, so the benefit of the extinguishment
of a claim under a statute of limitations is considered a vested right. See Estate of
Smith v. Scruggs, 685 So. 2d 1206, 1210 (Fla. 1996) ("Once a claim has been
extinguished by the applicable statute of limitations, the claim cannot be revived [by
subsequent legislation] because a constitutionally protected property right to be free of
the claim has vested in the defendant.").
is a vested right that could not be abrogated by the subsequently effective amendment
to section 489.128.
The decision of the Third District in Magil Construction, 785 So. 2d 597,
appears to involve facts similar to those of the instant case and an analysis of the
retroactivity issue at odds with our holding here. In Magil Construction, while suit was
pending, the 2000 amendment to section 489.128 became effective. The court noted
that the contractor had "applied for licensure prior to executing the construction contract
[in April 1997]," but that "[o]wing to a processing error, or insufficient filing fee, no
license was issued." Id. at 597. The Magil Construction opinion also recites: "The
owner argues that since the contractor never cured its unlicensed status, it is now
prohibited from doing so." Id. The court did not expressly state whenif everthe
contractor's unlicensed status was cured, although it might be inferred from the court's
reference to the owner's argument that the unlicensed status remained uncured at least
until after the 2000 statute became effective. The court stated that "assum[ing] that the
amended statute precludes a contractor from curing its unlicensed status . . . the effect
of the amendment is to remove the contractor's previously existing right to cure." Id. at
598. The court concluded, "Since this is a substantive change in the law, the 2000
amendment does not operate retroactively." Id. (citations omitted).
In Magil Construction, although the right to cure is characterized as a
substantive right, there is no discussion of how application of the 2000 version of the
statute " 'attach[ed] new legal consequences to events completed before its
enactment[,]' " Chase Fed. Hous. Corp., 737 So. 2d at 499 (quoting Landgraf, 511 U.S.
at 269), or of the distinction between vested rights and contingent or expectant rights.
To the extent that Magil Construction is understood to hold that it is a retroactive
application of law to apply the 2000 version of section 489.128 to preclude action to
cure a contractor's unlicensed status after the effective date of the 2000 statute, we
recognize that Magil Construction is inconsistent with our holding in this case.
R.A.M. had no vested right to cure its unlicensed status after the statutory
cure provision had been repealed. Since the trial court correctly concluded that
R.A.M.'s claims against WCI are barred, the judgment of the trial court is affirmed.
COVINGTON and VILLANTI, JJ., Concur.
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